Ella and Child Support Registrar (Child support)

[2019] AATA 4886

Ella and Child Support Registrar (Child support) [2019] AATA 4886 (23 September 2019)

DIVISION:Social Services & Child Support Division

EXTENSION APPLICATION

NUMBER:2019/SC016430

APPLICANT:  Mr Ella

OTHER PARTY:  Child Support Registrar

DATE DECISION MADE:                23 September 2019

APPLICATION:

An extension application made on 30 April 2019 asking the Administrative Appeals Tribunal (AAT) to consider the application for AAT first review of a decision of the Child Support Registrar on 2 March 2018 despite the period for applying for review having ended.

DECISION:

The extension application is refused.

CATCHWORDS   

CHILD SUPPORT – application for extension of time – satisfactory explanation for the delay – no merit – prejudice to other party – extension of time refused

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

STATEMENT OF REASONS

1. On 5 March 2018 Mr Ella was advised by letter of the decision (made on 2 March 2018) to disallow his objection to an original decision made by the Department of Human Services – Child Support (the CSA) on 7 September 2017, to register a child support case from 20 August 2017. The letter included information about Mr Ella’s review rights and the requirement to do so within a limited timeframe.

2. On 30 April 2019 Mr Ella lodged an application for review with the AAT in relation to the decision made on 2 March 2018, together with an application for an extension of time, setting out why the review was not lodged within the 28-day time limit.

3. On 23 September 2019 I determined the application for an extension of time to lodge the application on the papers. I had regard to the information in Ella’s extension of time application and to the subsection 37(1) statement and documents provided by the CSA.

ISSUE

1. The issue to be considered is whether Mr Ella should be granted an extension of time to lodge an application for review of the CSA’s decision of 2 March 2018 (notice given 5 March 2018).

CONSIDERATION

1. The law relating to a person’s right to seek review of a decision of the Registrar is contained in the Child Support (Registration and Collection) Act 1988 (the Act). Section 90 of the Act provides that under paragraph 29(1)(d) of the Administrative Appeals Tribunal Act 1975, a person is generally required to lodge an application for review of a decision of the Registrar with this tribunal within 28 days after a notice of the decision is given to them.

2. Where the period for lodgement has ended, the person may send the application for review to the tribunal along with an application requesting that the review be treated as if it was duly lodged, that is, that it was lodged within the allowed time (section 91 of the Act). Section 92 then provides that the AAT must consider the application for extension of time, grant or refuse that application and advise the person of the decision in writing.

3. The notice of the objections officer’s decision was sent to Mr Ella on 5 March 2018. Allowing for postage and delivery, the notice is taken to have been given nine business days later, unless there is evidence proving it was given on another date, and the 28 days within which the application to the AAT should have been lodged ended on 13 April 2018. Mr Ella’s application was not lodged until 30 April 2019 and was, therefore, about 12 months out of time. I must now consider whether to grant Mr Ella’s application for an extension of time to lodge his application for review of the decision of 2 March 2018.

4. In making my decision I must apply the law and I am guided by decisions made by courts or tribunals, including in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186 (Hunter Valley Developments); and Brown v Commissioner of Taxation [1999] FCA 563.

5. The AAT (second review) applied the principles set out in the Hunter Valley Developments case in Mulheron and Australian Telecommunications Corporation [1991] AATA 673 (Mulheron). The authorities, including Hunter Valley Developments and Mulheron, establish that when considering whether to exercise the discretion to allow an extension of time, a decision-maker should consider and balance a range of factors including:

   ·The reasons for the delay and whether the applicant rested on their rights or took action to make the decision-maker aware that the decision was being contested;

   ·Any prejudice to the other party including any difficulties that they will experience in providing evidence as a result of the delay;

   ·Any wider prejudice to the general public;

   ·Fairness in granting an extension of time as between the applicant and other persons in a similar position;

   ·The merits of the substantive application;

   ·Whether it is proper to grant the extension of time.

6. In the application for an extension of time, completed by Mr Ella’s legal representative, it states that soon after the decision was made, Mr Ella went overseas with the intention of remaining there permanently and believed that the child support assessment would not apply to him by virtue of him being overseas permanently. The application indicates that Mr Ella has returned to reside in Australia and became aware of the ongoing child support assessment, in relation to which a Departure Prohibition Order has been applied.

7. I was satisfied, on balance, that there is a reasonable explanation for the delay in Mr Ella lodging his application for review.

8. I also considered the merit of the application.

9. The objection decision in this case is in relation to the decision of 2 March 2018 to accept [Ms A]’s application for a child support assessment from 20 August 2017. The application completed by Mr Ella’s representative states that the decision is incorrect as there is a pre-existing binding child support agreement between Mr Ella and the other party to the child support assessment, [Ms A].

10. The documents before the tribunal indicate that a copy of the Financial Agreement, dated 21 January 2016, between Mr Ella and [Ms A], which included a provision in relation to financial support for the child, was given to the Department in 2016. Following communications with the Department about whether the Financial Agreement met the requirements of a binding child support agreement, a further document, “Joint Solicitors Letter and Declaration by the Parties dated 7 July 2016”, was also submitted. A letter dated 11 July 2016, from the Department’s complaints area to Mr Ella, acknowledges contact in relation to the Financial Agreement and states: “If both parents intend for this document to also be a Binding Child Support Agreement under the Child Support Assessment Act 1989, this clause would need to be drafted quite differently. As such the department is unable to consider the Agreement when making your child support assessment. However, there are a number of options you may wish to consider: ...”. Following a further letter from Mr Ella’s legal representative, dated 25 July 2016, and contact with [Ms A], the then current child support case was ended on 27 July 2016. It was recorded that on that date [Ms A] advised that she and Mr Ella had an agreement that she was not to collect child support payments from him. On 20 August 2017, however, [Ms A] lodged a new application for a child support assessment. The Department wrote to Mr Ella and asked him to make contact in relation to the application. Two unsuccessful attempts to contact him by telephone were also recorded. The application was accepted on 7 September 2017. Mr Ella and his representative subsequently both contacted the Department about the matter (on 11 September 2017 and 5 October 2017, respectively) and a written objection to the decision of 7 September 2017 was received by the Department on 23 October 2017. As this was more than 28 days after the date of the decision, Mr Ella applied for an extension of time to lodge the objection, which was granted on 23 November 2017. The documents show that during the objection process, the objections officer incorrectly stated that that Financial Agreement had not been given to the Department. Another copy was subsequently lodged on 22 December 2017, as stated in the objections officer’s decision. The objections officer concluded, however, that it did not meet the requirements of a binding child support agreement. This being the case, the objections officer was satisfied that [Ms A]’s application for a child support assessment was correctly accepted.

11. In considering the merits of Mr Ella’s application to the tribunal, I took into account the terms of the Financial Agreement between Mr Ella and [Ms A], as well the clarification contained in the Joint Solicitors Letter and Declaration by the Parties dated 7 July 2016. I was of the view that, taken together, they do not meet the requirements of a binding child support agreement. That is, the terms do not meet the requirements of section 84 of the Assessment Act. Clause 7c of the Financial Agreement provides for Mr Ella to contribute only in relation to the child’s education expense, but does not include the necessary terms which state how the annual rate of child support in the administrative assessment is to be reduced to reflect that contribution. While it seems clear enough what was intended by the parties, the child support law requires that child support agreements are also drafted in a way that is implementable by the Department, which is the problem in this case. Unfortunately, the attempt to address this through the Joint Solicitors Letter and Declaration by the Parties failed to address the problem in the original drafting of clause 7c. It follows that the decision to accept [Ms A]’s application for a child support assessment is not subject to the agreement.

12. In the circumstances, I concluded that there is no merit in Mr Ella’s application for review.

17.I also considered the prejudice to the other party to the child support case, to the CSA and to the general public should the extension of time be granted. I concluded that there would be prejudice to [Ms Ella] as she could be assessed to have been overpaid child support in the period following the registration of the child support case in August 2017.

18.I concluded that there would be limited prejudice to the general public in this case if the extension of time application was granted.

Conclusion

19.I carefully weighed the various factors which I had to consider. I concluded that there was a reasonable explanation for the long delay in this case, but as I was not persuaded of the merit of Mr Ella’s objection, I concluded that it was not appropriate to grant the application for an extension of time to lodge the application for review of the decision of 2 March 2018.